“Of the more than 2.7 million provisional ballots that were cast in 2012, more than 30 percent were not fully counted or rejected all together. Moreover, according to this first-of-its-kind analysis, in 16 states, the use of provisional ballots is more frequent in counties with higher percentages of minority voters.”

The report also holds up North Carolina as one of the 16 states:

“After controlling for population and examining county-level data in each state, we found that during the 2012 election, voters in counties with a higher percentage of minorities cast provisional ballots at higher rates than in counties with lower percentages of minorities in 16 states. Those 16 states are Arizona, California, Colorado, Kansas, Maryland, Montana, North Carolina, Nebraska, New Jersey, New Mexico, New York, Ohio, Oklahoma, Pennsylvania, South Dakota, and Utah.

Our findings raise serious questions about the health and integrity of the voting process in these states. Read More

Saying that the right to vote is fundamental, the 4th U.S. Circuit Court of Appeals today ordered the federal district court in Greensboro to stay provisions of the state’s recently enacted voting changes which eliminated same-day registration and prohibited the counting of out-of-precinct provisional ballots.

In a 2-1 decision joined by U.S. Judge Henry Floyd, U.S. District Judge James A. Wynn, Jr. wrote:

Courts routinely deem restrictions on fundamental voting rights irreparable injury.And discriminatory voting procedures in particular are “the kind of serious violation of the Constitution and the Voting Rights Act for which courts have granted immediate relief.” This makes sense generally and here specifically because whether the number is thirty or thirty-thousand, surely some North Carolina minority voters will be disproportionately adversely affected in the upcoming election. And once the election occurs, there can be no do-over and no redress. The injury to these voters is real and completely irreparable if nothing is done to enjoin this law.

So ruling, the court left intact other provisions of the so-called “monster voting law,” including these: the reduction of early-voting days; the expansion of allowable voter challengers; the elimination of the discretion of county boards of elections to keep the polls open an additional hour on Election Day in “extraordinary circumstances”; the elimination of pre-registration of sixteen- and seventeen-year-olds who will not be eighteen years old by the next general election; and the soft roll-out of voter identification requirements that go into effect in 2016. The judges said that plaintiffs may prevail on these claims later, but did not make enough of a showing to get a preliminary injunction.

Critical to the majority’s decision was the finding that the state’s elimination of same-day registration and its prohibition against counting out-of-precinct ballots likely violated Section 2 of the Voting Rights Act:

Everyone in this case agrees that Section 2 has routinely been used to address vote dilution—which basically allows all voters to ‘sing’ but forces certain groups to do so pianissimo. Vote denial is simply a more extreme form of the same pernicious violation—those groups are not simply made to sing quietly; instead their voices are silenced completely. A fortiori, then, Section 2 must support vote-denial claims.

The court then pointed to undisputed evidence showing that “same-day registration and out-of-precinct voting were enacted to increase voter participation, that African American voters disproportionately used those electoral mechanisms, and that House Bill 589 restricted those mechanisms and thus disproportionately impacts African American voters.”

U.S. District Judge Diana Gribbon Motz issued a dissenting opinion, noting that while she was troubled by portions of the lower court’s ruling she did not believe that ruling met the “clearly erroneous” standard needed for reversal. Motz also agreed with the state that changes to current voting law should not be made this close to the election.

Attorneys for the challengers praised the court’s decision to block key parts of the new voting law.

“The court’s order safeguards the vote for tens of thousands of North Carolinians,” Dale Ho, director of the ACLU’s Voting Rights Project, said in a statement. “It means they will continue to be able to use same-day registration, just as they have during the last three federal elections.”

“This is a victory for voters in the state of North Carolina,” Southern Coalition for Social Justicestaff attorney Allison Riggs added. “The court has rebuked attempts to undermine voter participation.”

But Senate President Phil Berger and House Speaker Thom Tillis, while pleased with the court’s refusal to block several provisions of law, said they were troubled by the ruling on same-day registration and out-of-precinct balloting. “We intend to appeal this decision as quickly as possible to the Supreme Court,” they said in a statement.

Election Day may have passed, but questions about voting rights are far from over. At the U.S. Supreme Court alone, at least four voting rights cases are pending and may be heard this term.

We’ll have more on that next week, but for now we’ll share what one son of the South had to say this week when confronted with a voter ID challenge in Ohio.

There, one day after the election, lawyers for Ohio secretary of state Jon Husted found themselves before U.S. District Judge Algenon Marbley, defending Husted’s last minute directive to poll workers to reject any provisional ballot in which voter identification information had been improperly recorded. Marbley had previously entered an order requiring poll workers to record that information on the ballot and holding them responsible for any errors, so that ballots could not be rejected on that basis. Read More